Although the duty to accommodate employees with demanding child care responsibilities has long been recognized as part of an employer's duty to accommodate on the basis of family status, as a result of the aging Canadian population a new category of family status claimants has been judicially recognized: employees with elder care responsibilities. Whether arising in the traditional child care or the expanding elder care category, employers in Ontario have faced considerable uncertainty in determining the scope of their duty to accommodate on the basis of family status.

A recent decision of the Ontario Human Rights Tribunal (HRTO), Devaney v. ZRV Holdings Limited 2012 HRTO 1590 (Devaney), suggests if the employee's caregiving responsibilities are required, as opposed to a mere preference, the employer will have a duty to accommodate.

The Facts in Devaney

Devaney was an employee of ZRV, an architectural firm, for approximately 27 years until his employment was terminated in January 2009. Devaney was considered to be a talented employee and at the time of the termination of his employment his responsibilities included primary carriage of a large development file. However, toward the end of 2007, Devaney, who was the primary caregiver for his disabled mother, started working from home frequently to accommodate his caregiving responsibilities.

Devaney's employer insisted that Devaney, like all other employees, be present in the office, daily between core working hours of 8:30 a.m. to 5 p.m. and on numerous occasions raised concerns about his frequent absences or late arrivals. Devaney adopted the view that most of his work could be done remotely from home, outside the core business hours with the aid of technology.

Notwithstanding that Devaney's absences did not seem to affect the quality of his work product, Devaney's employer continued to insist that he be present in the office daily. Ultimately, as a result of his failure to work out of the employer's office, Devaney's employment was terminated for cause in January 2009.

Tribunal Revises the Test

Following a review of the pre-existing and largely conflicting tests established by the Canadian Human Rights Tribunal and the British Columbia Court of Appeal, the HRTO adopted a new test focusing on the distinction between the needs and preferences of employees with caregiving responsibilities.

Specifically, the HRTO found that in order to make out a prima facie case of discrimination on the basis of family status, an applicant will be required to demonstrate that he or she was adversely impacted on the basis of a requirement imposed by his or her status as a caregiver. If an adverse impact is deemed to relate merely to an employee's preference or choice, no prima facie case will be established. In adopting the revised test, the HRTO denied any reasonable basis on which to create a higher threshold or test for claims based on family status compared to claims based on other protected grounds (e.g., sex, age).

The HRTO found the company's strict attendance policy requiring Devaney to work out of the company's office had an adverse impact on Devaney as a result of his family responsibilities. The HRTO went on to conclude that by failing to engage in a dialogue with Devaney about his needs, the employer contravened the Code. Although Devaney found another job shortly after his termination, the HRTO awarded Devaney $15,000 in general damages.

What This Means to Employers

This case confirms that family status will be interpreted to cover not only child care responsibilities, but also elder care responsibilities. Given the HRTO's rejection of the line of cases that required a higher threshold for family status claims (e.g., serious interference with a substantial parental duty) than for claims based on other protected grounds, employers in Ontario need to be cautious not to dismiss claims based on family status out of hand. Rather, consistent with the test articulated in Devaney, employers will need to provide reasonable accommodation of an applicant's needs, but not mere preferences.

Best Practices Regarding Accommodation Requests

Devaney serves as a reminder of several best practices for employers regarding requests for accommodation:

Don't dismiss requests out of hand. Upon learning of an employee's request to satisfy his/her family responsibilities, employers should engage in an immediate dialogue to determine the scope of the employee's needs and to design an accommodation strategy if necessary.

Document the accommodation process. Employers should make carefully documented inquiries to determine whether the accommodations (e.g., working from home, modified hours, absences for family medical appointments) are in fact reasonably related to caregiving obligations and whether such obligations rise to the level of necessity or are a mere preference or matter of convenience. For example, if an employee advises that he/she wants to modify his/her hours of work to leave at 4 p.m. because daycare pick-up requires the employee to do so, it is reasonable for the employer to make a request in writing for the employee to confirm what other daycare options are nearby, what inquiries the employee has made regarding those options and whether there is another person who could pick-up the child at daycare.

Policies must be reasonable. Employers should consider the flexibility of their attendance policies to determine whether employees with caregiving or other family responsibilities are able to work effectively from home or during non-traditional hours where technology and circumstances permit.

Gather evidence of undue hardship. Bald assertions about flexible work arrangements negatively affecting workplace morale were rejected in Devaney. It is important to gather objective evidence related to productivity (e.g., sales results, 360 performance reviews) before taking the blanket position that employees cannot work from home.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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